Moral/Ethical Halakhic Concerns of the Online Environment
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1 Moral/Ethical Halakhic Concerns of the Online Environment: Safegaurding the Ethical Essence of Judaism Living with Torah in the Digital Age As Librarians Committed to Fostering Ethical-Intellectual-Spiritual Virtue Amongst Our Patrons in Quest for Hokmah, Binah, VeDaas In a Life Long Endeavor in the Cognitive Life of the Mind Introduction: There is a growing body of rabbinic texts on the questions regarding Halakhic ethical concerns of the online environment. The shealot ve-teshuvot, Responsa genre draws Jewish law from the past by analogizing halakhic principles that apply to questions regarding the new technologies. We will identify some of these ethical concerns and classify them. Some of the many halakhic issues treated in this paper include: (1) the Cherem Rabbenu Gershom forbidding reading others’ letters, and invading privacy rights [classified in 4 categories: (a) visual privacy, i.e. Hezeq re’iyya, (harm caused by seeing) (b) privacy of (c) privacy of one’s communications (d) אִם- בַּמַּחְתֶּרֶּתיִמָּצֵא הַּגַּנָּב ,.one’s residence against tresspassers i.e thereby [ הֹולֵךְרָּכִיל, מְגַּלֶּה-ּסֹוד; וְנֶּאֱמַּן-רּוחַּ , מְכַּּסֶּהדָּבָּר ,prohibition of disclosure of nistarot and tailbearing transgressing against the Chofetz Chaim’s laws of shemirat loshon (lashon harah, and motzhi shem rah), and by extension the isur on reading by spying on another person’s emails, a warning against which can include פג,ין meaning herem d’rabbeinu Gershom, or pagi’in בחדר"גמה בחרם ד,רבננו גרשום מאור הגולה :the phrase The sanctity of Hashem’s name and the prohibitions of erasing (2) פורץ גדד י-שכנו נחשan acronymn for the name (mechikat Hashem) based on Devarim 12:2-3, and does this apply on a computer screen i.e. lo ta’asum ken is an issur chaftza, a prohibition pivoting around a physical object (a sefer Torah and sacred texts qualifying for Shemos in a geniza) with a specific halakhic status, written by a sofer who has teveled in a mikvah and written the name with yirat shamayim (haikkar ve-takhlit ha-adam) and kavanah (3) internet commerce on Shabbat, (4) social network listserves, blogs, wikis, etc. by which Orthodox Jews can construct "cyber" communities (5) employing filters for screening out “pritzus, narishkeit, and stius, (6) spyware and cookies that marketers use to target consumer groups, who may not wish these marketing techniques be used to waste their time, bitul zeman; (7) davoning from a kindle or ipod obviously not on Shabbos, (8) cyber minyanim and mizumem?, (9) permissibility of censoring hate literature on the web, (10) computer crimes of abuse and fraud by which one piggy- backs on another’s Wi-fi unsecured signals without authorization or permission to access to a computer network, contracted by others, possibly harming the network and damaging others’ data, and also diminishing bandwidth which can effect speed of connection for the paying subscriber, ergo constituting geneiva and violating Shmuel’s pronouncement of Dina De’Malchuta Dina, (11) illegal film and music downloading causing financial loss to royalties of copyrighted works, despite minhago shel olam (normative practice) and hamotzi l’or yodeah mizeh (the author knew full well upon making the work public how it might be abused, i.e. umdenah (common assumption) (12) ethical concern with author copyright within 5 halakhic categories: A. Hasagat gevul -- unfair competition:B. Haskamot -- approbations; C. Dina d’malkhuta dina -- secular law; D. Shiur b’kinyan -- witholding 2 the right to copy.and copyright- E. sighting a law in the name of one’s Rebbe who learned it from his Rebbe, a reason Rabbi Yosef Karo wrote the pirush Kesef Mishnah on Rambam’s Sefer Mishnah Torah, MT. i.e. (omer davar bshem omro) i.e. Rabbi Yosef Karo in Kesef Mishna to Rambam’s MT. see: כב וַיִּוָּדַע הַדָּבָּרלְמָּרְדֳּכַי, וַיַגֵּד לְאֶסְתֵּ ר הַמַלְכָּה; וַתֹּאמֶר אֶסְתֵּ ר לַמֶלֶךְ , םבְשֵּ מָּרְדֳּכָּי Megilah 15a) explicating Esther 2:22 This presentation attempts to outline and gather some of the basic frameworks of the halakhic approaches and principles to online ethical issues, for practical guidance please consult a qualified halakhic authority credentialed to field sheolos.1 Due to limits in time we will only have time to briefly give an overview of sections 1, 2, 5, and 12, 1. Ethics of Privacy Issues2 and why halakhah affirms privacy rights3: Is hacking and computer brake in merely a form of geneva or more importantly an issue of privacy? Protecting the privacy of communications between individuals is very much in keeping with Jewish philosophy, and its further protection by a cherem in keeping with the tradition of guarding the dignity of persons by not revealing private [possibly shameful matters] when possible. The Cherem d’Rabbenu Gershom4 (960-1028, Germany) remains to prohibit the reading of another’s mail and by application emails. Does the Cherem whatever its scope apply also to family members such as spouse or those acting in loco parentis? Are there exceptions to the regulation, and if so under what objective criteria would warrant such invasion of privacy? Since Cherem has numerous contexts and meanings5 how does the Cherem d' Rabbenu Gershom apply to emails? Yosef was careful not to have anyone outside his family by privy to the tension that existed between brothers. Da’at Zekenim explains his thinking – why let Mitzreim know that there had been bad blood between the brothers, for the Egyptians would be hosts to the brothers and their descendents and this pejorative info could hurt the Jews in the long run. Clearly halakhah considers that whenever possible a person’s private matters be guarded from enemies.6 The Maharik writes, “Whoever violates Rabbenu Gershom’s cherem on opening another’s mail, is as one who violates something from the Torah (shoresh 184). A question is raised what if the writer of the email threw it out in “trash” icon on the computer screen- is that permissible to read with privacy rights of Rabbenu Gershom? The author of the Halachot Ketanot rules that one may not read even a disgarded letter.7 There exists the rabbinic view to protect both sender and recipient. Even absent any derogatory material in the letter most say that one is not permitted to share the contents.8 The Chofetz Chaim notes that by telling over even seemingly innocuous contents, one may inadvertently cause harm or distress to the writer, and therefore it should not be done.9 Writing is worse than speaking. If in speaking it is oser according to the Chofetz Chaim to speak Lashon harah, and kal wa-homer it is oser to speak motzi shem rah (slander and libel) minor ad majoris in writing down these stricture apply all the more so. The Chofetz Chaim identifies the impurity of leprosy first put upon Miriam…. As the source text for the laws of lashon harah.10 The divulgence of private personal information that can embarrass or worse damage an innocent person is forbidden in Jewish law. Rabbi Akiva was criticized by Rabbi Judah ben Bethara for violating the Biblical ban on volunteering information that is not verifiable, thereby maligning a righteous person who in this case was alleged to have desecrated the Sabbath.11 meaning )בחדר"גמה בחרם ד,רבננו גרשום מאור הגולה) It is customary in rabbinic culture to write on an envelope i.e. (someone who breaks through a fence that rabbis erected may be פג,ין herem d’rabbeinu Gershom, or pagi’in bitten by a snake12) How does this apply to email privacy rights? The Be’er Hagolah holds if pag’in is written on a letter it is protected from voyeurs. Ramo (R. Moshe Feinstein)13 notes that we must compare other of Rabbenu Gershom’s takanot. i.e. if a couple lives together for 10 yrs. He is permitted to divorce his wife if they have not fulfilled the mitzvah of having children. The mitzvah of peru urevu therefore leverages the cherem. If the cherem Rabbenu Gershom impedes the mitzvah to be fruitful and multiply then yibum is employed so that the principle of makom mitzvah (and this is the rule 3 whenever it is a matter of performing a mitzvah). Likewise the logic, “let him violate on Shabbat in order to live many shabbatot with regards to pekuah nefesh dokeh et hashabat. Not based on Talmudic logic of Kal wa-homer, i.e. If we do brit millah on Shabbos to save one limb of the body if that falls on the 8th day, then kal wahomer, we do pekuah nefesh to save all limbs of the body etc. Rav Karo rules that with yibum the Cherem Rabbenu Gershom is overridden if a man must fulfill the mitzvah of peru verevu. Ramo argues in some limited cases based only on objective criteria there is a small # of cases where reading other’s emails might be allowed? The logic is based on the principle that if following a cherem of Rabbenu Gershom would impede performance of a mitzvah, then the cherem does not apply absolutely.14 In his gloss to the Shulchan Aruch he writes, vehu hadin bechol makom mitzvah (and this is the rule whenever it is a matter of performing a mitzvah). Ramo notes that although there is a cherem of Rabbenu Gershom not to divorce one’s wife against her will, but if a couple lives 10 years without children, he is permitted to divorce his wife in order to marry someone else to try to fulfil the mitzvah of having children.15 The author of Chikeki Lev does not accept the premise of makom mitzvah leveraging the right to read other’s mail16 going to the essence of why the cherem on reading other’s mail is oser: i.e.